Judge orders legal remediation training for Hancock County prosecutor

Linda Coan O'Kresik | BDN

Linda Coan O'Kresik | BDN

Hancock County Assistant District Attorney Mary Kellett (right) is accompanied by Hancock County District Attorney Carletta "Dee" Bassano as she walks to the Penobscot Judicial Center for her prosecutorial misconduct hearing by the Maine Board of Overseers in October 2012.

ELLSWORTH, Maine — A Maine supreme court justice has issued a suspension order for Assistant Hancock County District Attorney Mary Kellett.

The order, issued Tuesday by Justice Ellen Gorman of the Maine State Supreme Judicial Court, comes a day after Kellett appeared in a Portland courtroom and admitted she violated several rules of the Maine Bar when she prosecuted a former Gouldsboro man from 2007 until 2009 on assault and sexual assault charges. In an agreement with J. Scott Davis, counsel to the Maine Board of Overseers of the Bar, Kellett acknowledged Monday that she made errors in her prosecution of Vladek Filler but said they were unintentional.

In the order, Gorman suspends Kellett’s law license for 30 days but effectively puts the suspension on hold on the condition that Kellett complete six hours of continuing legal education. The suspension is on hold, Gorman wrote, “for a period of not less than six months, nor more than one year.”

The judge’s order is the culmination of a grievance complaint against Kellett that Filler, a former Gouldsboro resident, filed in December 2010 with the Maine Board of Overseers of the Bar, which regulates the professional conduct of licensed lawyers in the state. Filler had been prosecuted by Kellett on charges that he physically and sexually assaulted his wife. After two trials, the second of which was handled by a different prosecutor, he was found guilty only of misdemeanor assault. Filler served 21 days in jail last fall for his May 2011 misdemeanor assault conviction.

Filler has asserted that his relationship with his now ex-wife was deteriorating and that she fabricated the allegations in order to gain an advantage in an anticipated custody dispute over their two sons. Filler, who now lives in suburban Atlanta, gained custody of the two boys in his subsequent divorce.

In his complaint to the Board of Overseers, Filler accused Kellett of violating rules of the Bar by making inappropriate comments during closing arguments at his first trial, in January 2009, and by suppressing and failing to disclose evidence that Filler sought during the discovery process for his legal defense leading up to that trial.

In her closing argument at the January 2009 trial, Kellett questioned whether a custody dispute figured into the allegations against Filler even though she had convinced the trial judge to bar testimony about any such custody dispute. She also improperly told the jury there was no evidence that indicated a sexual assault hadn’t taken place, which suggested that it was Filler’s burden to prove himself innocent rather than Kellett’s burden to prove that he was guilty.

Last fall, a grievance panel of the board held a hearing in Bangor on Filler’s complaint and later determined that Kellett had violated seven bar rules in handling Filler’s case. The board recommended to Gorman that Kellett be suspended for her misconduct.

In Gorman’s order, the judge notes that Kellett’s case is the first disciplinary petition the Board of Overseers has filed with the Law Court against a prosecutor. It also is Kellett’s first sanction for violating bar rules, she added.

According to Gorman, changes aimed at preventing future discovery violations already have been implemented at the Hancock County district attorney’s office. Use of a paperwork form that instructed defense attorneys to request discovery materials directly from police agencies has been discontinued, she indicated. Office staff now forward the precise text of each defense attorney’s discovery request to the appropriate law enforcement agency.

Kellett now routinely reviews police officer case files with that officer “to ensure that all materials required by the discovery rules are supplied to the defense,” Gorman added. Kellett also relies upon written communications with police officers and defense attorneys to document what evidentiary materials are being requested and whether those materials exist.

In addition, Kellett has reviewed proper discovery procedure and closing argument presentations with the Maine Prosecutors’ Association, with other prosecutors and with her boss, Hancock County District Attorney Carletta “Dee” Bassano. She also has reviewed articles and case law concerning a prosecutor’s responsibilities when it comes to discovery materials and closing arguments, Gorman wrote.

The judge stipulated in her order that one of the six hours of continuing legal education that Kellett must complete has to address “prosecutorial ethical or professional responsibility issues,” while the remainder must deal with opening statements, closing arguments and discovery. The six hours of training have to be approved by J. Scott Davis, counsel to the Board of Overseers, and have to be completed in addition to the annual continuing legal education training required by the Bar.

After Kellett’s training is completed and certified by Davis to Gorman, the judge’s suspension order will be terminated without further action, Gorman wrote.

Attempts this week to contact Kellett and Bassano about Kellett’s admission and Gorman’s order have been unsuccessful. Kellett is scheduled to be out of the district attorney’s office the entire week, according to staff at the office. Bassano did not return a voicemail message left Wednesday at her office. Kellett and Bassano consistently have declined to comment on Filler’s complaint.

Filler asked Gorman on Monday to disbar Kellett and later said he was disappointed that the prosecutor only faced possible suspension.

On Wednesday, Filler said in a brief prepared statement that the decision to treat Kellett’s “intentional” misconduct as “just simple and isolated mistakes” amounted to a betrayal of the evidence and witnesses he presented last fall to the grievance panel and of the panel’s findings.

“The handling of the evidence in my Bar complaint and this decision is a betrayal of all ethical attorneys, the ethics rules themselves, all innocent victims of prosecution, and most of all the people in Maine and Hancock County specifically,” Filler wrote.